Rachel Browning’s Legal Blog

            Yesterday the U.S. Department of State released its 9^th annual Trafficking in Persons Report, a comprehensive report outlining both the scope of the problem of human trafficking and the efforts the U.S. and international partners throughout the world are engaged in to end what has become known as modern day slavery.  The report sheds new light on various facets of the problem and highlights shared and individual efforts of the international community to encourage other foreign governments to take effective action against all forms of trafficking in persons.  

            The U.S. government enacted the Trafficking Victims Protection Act (TVPA) in 2000 as an initial step to define the problem and outline proposed strategies to combat human trafficking.  The purpose of the law is to punish traffickers, protect victims, and prevent trafficking from occurring.  The TVPA defines “severe forms of trafficking” as:  a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

·         Sobering Statistics

            The International Labor Organization (ILO)—the United Nations agency which addresses international labor standards, employment, and social protection issues—estimates that there are over 12 million adults and children in forced labor, bonded labor, and commercial sexual servitude at any given time. Of these victims, the ILO estimates that at least 1.39 million are victims of commercial sexual servitude, both transnational and within countries.   Victims come from all over the world, and many end up right here in the United States.  The majority of victims – 56 percent – are women and girls.  Human traffickers prey on the weak, targeting vulnerable men, women, and children by using creative methods to trick, coerce, and win the confidence of potential victims.  Most often this involves promises of a better life through employment, education, or marriage.  Another unfortunate aspect of trafficking is the role of parents in allowing their children to become victims.  In some situations, the parents are victims as well, tricked into giving up their children in servitude with promises of a better life, school or other opportunities.  But in many situations, parents play a more sinister role, selling their children into prostitution or involuntary servitude in order to repay their own debts.  The report stresses the importance of local law enforcement in combating this part of the problem and notes that several countries have begun taking steps to criminalize such actions of parents.  Albania, for example has made it a crime for a parents to force their children into begging.

·         Public-Private Initiatives

            On a more positive note, the report also highlights several Public-Private Sector Partnerships in which corporations are working with government agencies and NGOs to enact targeted strategies to deal with different aspects of human trafficking.   For example, the Wyndham Hotel Group has joined efforts with the non-profit agency Polaris Project to provide free rooms to victims of trafficking.  LexisNexis (a legal database and search engine) has partnered with the U.S. National Human Trafficking Resource Center to create a national database of social service providers.  And Microsoft has partnered with several non-profit agencies in Asia to provide technical training to individuals in underserved communities, enabling those individuals to find legitimate sources of employment, thus lessening their vulnerability to trafficking.  Microsoft also provides training to law enforcement agencies on computer-related crimes in which many traffickers target children online.   

·         U.S. Immigration Law – Protection to Victims of Trafficking

            Under the Immigration and Nationality Act (INA), victims of trafficking can be eligible for immigration benefits.  The T nonimmigrant status (also known as the T visa) was created to provide immigration protection to victims of a severe form of trafficking in persons. The T visa also allows victims to remain in the United States and assist federal authorities in the investigation and prosecution of human trafficking cases.  Those who have been granted T-1 nonimmigrant status may eventually file for permanent residency provided certain conditions have been met.  Applicants must have been physically present in the United States for either a continuous period of at least three years since the first date of admission as a T-1 nonimmigrant; or for a continuous period during the investigation or prosecution of acts of trafficking, and the Attorney General has determined the investigation or prosecution is complete, whichever period of time is less.  In addition, individuals must have been a person of “good moral character” since admission as a T-1 nonimmigrant.  Finally, applicants must have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking since first being admitted as a T-1 nonimmigrant, or else show that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States.

            For more information about T Visas and other forms of humanitarian immigration benefits or questions about immigration in general, contact the experienced immigration attorneys of Smith & Garg in Houston, The Woodlands and Spring, Texas or Long Beach, California for further assistance.

In his campaign for the presidency, President Barack Obama vowed to promote policies that would reform our nation’s immigration system comprehensively, those that focused not just on border security, but reforms that would “bring people out of the shadows,” keep families together and remove the various hurdles that encourage people to enter and remain in the country illegally.  So far the administration has chosen to focus on a few select issues in need of redress, such as expanding the Children’s Healthcare Program to remove barriers preventing legal immigrant children from being covered, and providing interim relief to immigrant widows and widowers of U.S. citizens who died before their spouse’s immigrant petitions could be adjudicated.   Congress seems to be taking a similar approach to reforming the system, introducing bills that target one area of reform, such as the Dream Act.  The latest suggested reforms would go to individuals involved in same-sex relationships who seek to sponsor their domestic partners for permanent residency. 

Earlier this year, Senator Patrick Leahy of Vermont introduced a bill in the Senate, the Uniting American Families Act, which would amend the Immigration and Nationality Act (INA) to eliminate discrimination in the immigration laws by permitting “permanent partners” (i.e., same-sex partners) of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents.  On June 3, 2009, the Senate conducted hearings on the issue and so far the bill has 19 cosponsors.  A related bill (H.R. 1024) was introduced by Rep Nadler, Jerrold [NY-8] in the U.S. House of Representatives on March 16, 2009 and has 111 cosponsors. 

Proponents of the bill seek to end the discrimination against same-sex couples and the hardship that bi-national same-sex couples face under current provisions of the INA.  The Senate bill would amend the text of the INA by expanding eligible U.S. citizen and permanent resident petitioners to include same-sex “partners” of immigrant beneficiaries.  The bill would define “permanent partner” as an individual 18 years of age or older who: (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both individuals intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to, or in a permanent partnership with, any individual other than that other individual; (D) is unable to contract with that other individual a marriage cognizable under this Act; and (E) is not a first, second, or third degree blood relation of that other individual. The term “permanent partnership” refers to the relationship that exists between 2 permanent partners. 

Under current law bi-national same-sex couples do not have the benefit of immigration sponsorship based on their relationship.  The law forces these couples to make the impossible choice of living apart, or of immigrating to another country – such as Canada – which does recognize their partnership or marriage for immigration purposes.  Same-sex marriages are also recognized in Netherlands, Belgium, Spain, Canada, South Africa, Norway and Sweden.  And with the current recognition of same-sex marriage in states like Massachusetts, Connecticut, Vermont and Iowa and most recently, Maine and New Hampshire, proponents of the bill believe the timing is optimal for achieving equal rights for same-sex couples for purposes of immigration in the United States. 

After the latest California Supreme Court decision upholding Proposition 8 which defined marriage to be only the union between a man and a woman, the fight for equal rights for same-sex couples has shifted to the federal courts.  The American Foundation for Equal Rights recently filed a lawsuit on behalf of a California couple challenging the federal constitutionality of Proposition 8 and seeking an injunction of the proposition until the case is resolved, ultimately by the U.S. Supreme Court.  Other equal rights advocates have called upon President Obama to work with Congress in repealing other discriminatory laws, such as the Defense of Marriage Act and the military’s “Don’t Ask Don’t Tell” policy. 

It is unclear what impact, if any, these legal developments will have on one another, whether they will lead to an expansion of the marriage definition overall, or whether the various proposed reforms will wind up competing with one another and only complicate what should be a clear-cut equal protection issue.  Thus, the debate continues….

        Yesterday U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the DHS would be granting deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and were married for less than two years prior to their spouse’s death.  Current immigration law provides no relief for those who had been married less than two years before the death of their U.S. citizen spouse.  Instead, under current law, widows and widowers of U.S. citizens can self-petition for permanent residency only if they were married at least two years, and they self-petition within two years of their spouse’s death.   

        “Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues,” said Secretary Napolitano. “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”

        Secretary Napolitano also directed U.S. Citizenship and Immigration Services (USCIS) to suspend adjudication of visa petitions and adjustment applications filed for widows/widowers where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage. Additionally, U.S. Immigration and Customs Enforcement (ICE) will not initiate removal proceedings or execute final orders of removal against qualified widows/widowers and their eligible children. 

        These initiatives will apply whether or not the deceased U.S. citizen had filed a petition for the alien spouse before death.  “Deferred action” is an act of prosecutorial discretion to suspend removal proceedings against certain individuals for a specific timeframe and for a specific purpose.  It does not, however, confer any lasting type of immigration “status” on those individuals.  Those granted deferred action may apply for work authorization if they can demonstrate economic necessity.  Thus, Secretary Napolitano’s directive only provides a temporary form of relief for widows and widowers of deceased U.S. citizens.  Permanent relief in the form of a new provisions and regulations will require legislation through an act of Congress; most likely an amendment to the definition of “immediate relatives” under the INA that allows surviving spouses to remain indefinitely after the U.S. citizen spouse dies to seek permanent resident status.

        Secretary Napolitano’s initiative provides another small step in reforming our immigration system, by focusing on an issue in which both the proponents and critics of “comprehensive reform” will likely find common ground.  Obviously more changes must be made to overhaul a broken system, but these reforms must come from Congress.  The Secretary’s decision signals that the Obama Administration is committed to bringing relief to immigrants in need using whatever legal avenues it can employ for the present time. 

        If you have questions about these provisions or about other immigration issues, please contact the Immigration Attorneys of Smith & Garg in Houston, Spring and The Woodlands, Texas and Long Beach, California.<span style=”mso-spacerun: yes;”>  We can assist you in achieving the relief and benefits you seek.

Attorney General Eric Holder today withdrew the decision issued by former Attorney General Mukasey in Matter of Compean, Bangaly & J-E-C, 24 I&N Dec. 710 (A.G. 2009), during the remaining days of the Bush Administration, which effectively changed the standard applied to motions to reopen removal proceedings based on an alien’s claim of ineffective legal representation in those proceedings.  Attorney General Mukasey’s decision overruled Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), to the extent that it indicated an alien had a constitutional right to effective assistance of counsel. In Lozada, the BIA had established the procedural requirements and standards for filing a motion to reopen; stating that a motion based on a claim of ineffective assistance of counsel required the alien to show that his due process rights were affected and he was prejudiced by counsel’s performance.  The BIA’s decision in Lozada was one that had stood for over 20 years when the former Attorney General issued his controversial decision.  Mukasey’s discretionary ruling set forth a new substantive and procedural framework for reviewing these claims, and rejected the constitutional basis of Lozada’s reasoning.  Instead, Mukasey’s ruling in Matter of Compean, held that while aliens had no right to a reopening of their case based on ineffective assistance of counsel, such cases could be reopened upon an act of “administrative grace.” 

Attorney General Holder stated during his confirmation hearings that he would review the former Attorney General’s decision.  He also indicated that he disagreed with the reasoning of Matter of Compean.  Standing by his stated goal, Attorney General Holder revisited Compean and the issues invoked, and vacated the decision.  He also directed the Board of Immigration Appeals and Immigration Judges to continue applying the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.  In addition, Holder directed the Acting Director of the Executive Office for Immigration Review to initiate rulemaking procedures as soon as practicable to evaluate the Lozada framework and to determine the modifications to be submitted for public consideration.  “The preferable administrative process for reforming the Lozada framework,” Attorney General Holder stated, “is one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.” 

If you have questions or would like additional information about removal proceedings, motions to reopen or other immigration issues, please contact the Immigration Attorneys of Smith & Garg in Houston, The Woodlands, Spring, Texas and Long Beach, California.

       This week USCIS officials traveled to Afghanistan to process naturalization applications and interview 125 members of the military who have applied to become U.S. citizens. Those eligible service-members whose applications are approved will then participate in a special Memorial Day naturalization ceremony at Bagram Air Base in Afghanistan.   “These USCIS officers volunteered to deploy in support of our military men and women serving in Afghanistan,” said acting USCIS Deputy Director Mike Aytes. “It is a privilege to support our nation’s servicemembers in their pursuit of citizenship, and we are humbled by their selfless service to the United States.”  And so with Memorial Day just around the corner, I’d like to give a shout out to our veterans and service-members serving here and abroad, and send my congratulations to those who will soon become U.S. Citizens, in part, through their service to our country.

·         Naturalization of U.S. Service-members

            All immigrants who have served honorably in an active-duty status for any period since Sept. 11, 2001, are eligible to apply for citizenship under special provisions in the Immigration and Nationality Act.  Under these provisions, USCIS officers have administered the Oath of Allegiance to more than 47,500 service-members, including women and men serving in Afghanistan, Djibouti, Germany, Greece, Iceland, Iraq, Italy, Japan, Kenya, Kuwait, South Korea, Spain, the United Kingdom and onboard Navy flagships at sea. 

·         Basic Naturalization Requirements

            Individuals who have been permanent residents of the United States for a period of at least five years are eligible to apply for naturalization.  Those who acquired their permanent residency through marriage are eligible to apply for naturalization after three years of permanent residency, provided they are still married to and residing with their spouse through whom they gained permanent residency.  The general requirements for naturalization include: continuous residence and physical presence in the United States; residence in a particular USCIS District prior to filing; the ability to read, write, and speak English; a knowledge and understanding of U.S. history and government; good moral character; “attachment to the principles of the U.S. Constitution”; and, a “favorable disposition” toward the United States. 

            If you are interested in learning more about the special naturalization provisions for U.S. service-members, or general information on the naturalization requirements and procedures, contact the immigration and naturalization lawyers of Smith & Garg in Houston, The Woodlands, and Spring, Texas for more information or to schedule a consultation.